Immigration and Refugee Clinic Lands Major Victory in Political Asylum Case

September 25, 2009

The Harvard Immigration and Refugee Clinic (HIRC) landed a major immigration court victory in early September when it obtained asylum status for a parent and his two children whose family members were singled out for torture and murder in El Salvador by a notoriously violent gang.

The case marks a rare instance where a U.S. immigration court has granted asylum status under current conditions in El Salvador, and based on extreme targeting of a family because of their courageous stand against gang violence and in favor of the rule of law.

“This is a cutting-edge issue that we just won, and we are thrilled for the family,” said Deborah Anker, HLS Clinical Professor of Law and Director of the Clinic.

In the past, the Harvard Immigration Clinic, with colleagues at Greater Boston Legal Services, was instrumental in obtaining recognition of gender as a basis for asylum protection. In this case, the clinic argued that “family status” was the immutable trait that entitled the family to asylum. While the U.S. and the international community have in principal acknowledged family status as a possible immutable trait in asylum, they have not applied it consistently, especially in instances involving gang violence. Although there are a growing number of these kinds of cases in the courts, very few petitioners have been successful in achieving asylum status.

“I feel happy after waiting all this time that we have the results we wanted for my children,” said the parent, through a translator.

For two years, a group of HLS students, supervised by Jean C. Han, who was the Albert M. Sacks Clinical and Advocacy Fellow at the Immigration Clinic, worked on the case. Several of their clients’ family members were tortured and buried alive, said Anker. Narrowly escaping the same fate, the parent and children walked from El Salvador to the U.S. and crossed the border through Texas, where they were detained by the border patrol and placed in a detention center.

The clinic and the students spent “hundreds and hundreds” of hours working on the case, according to Han. She said the term “gang” is somewhat of a misnomer, given that the violence these groups perpetrate in El Salvador is so extreme. “It’s a modern, 21st-century war zone,” she said. The case was “incredibly complex,” she continued, adding, “With asylum cases, it’s never just about applying for asylum. It’s about these people’s entire lives—not just about what happened to them, but they come here with nothing in their hands, no documentation, no means of support, no one to help them, and no one with any funding even if they are willing to help.”

In preparation for the hearing, Han and the students got in touch with a police officer in El Salvador who investigated the murders of the family and sent the clinic photographs of the murder victims from the crime scene. They also got an affidavit from him asserting that his police force simply could not protect the surviving members from the gang.

At the evidentiary hearing in June in Boston on the asylum petition, the immigration judge requested a memorandum on law differentiating this case from another case in the First Circuit Court of Appeals, in which the petitioner was denied asylum status he’d sought based on gang violence in his country of origin. Fortunately, the HLS students were well prepared to respond. “This was a very strong case but it was a strong case because of the facts that everyone spent time developing,” Anker said, calling Han and the students “the heroes of the case.” She complimented them for their dedication and legal analysis, and Han for her careful supervision of the student team.

Han said she often suffered nightmares about the case, worrying about the family’s fate. “I knew that if I lost this case they were going to be sent back and suffer the same fate their family suffered,” she said. “You go through two years of trying your best to make sure that this wonderful little family that’s small now because of what happened to them doesn’t become smaller.”

The children spoke no English when they arrived in the U.S. Today, they are straight-A students very involved in their local community, where their parent works more than 70 hours a week in the hospitality industry. The town in which they live demonstrated passionate support for the family, sending numerous letters to the court in support of their petition for asylum. The principal of the children’s school and many of their teachers, as well as caseworkers from social agencies, attended the evidentiary hearing to show support. One of the children wants to go to law school and become an immigration attorney, another plans to become a police officer and a nurse, working for communities with little access to health care.

“They’re extraordinary people and the children will be leaders in fighting such gang violence and abuses in our own country and internationally” said Anker. “They are survivors, and they have the motivation to be successful.” Of the children’s desire to enter careers where they will help others, Anker said, “They are giving back to the community and want to continue giving back. They believe in a people’s right to live without fear and in peace.” Anker praised the social agencies and the community that rallied around to provide the family with support, and the family for their willingness to accept the help they needed. Anker had kind words for the court, too, saying, “There are so many good immigration judges out there who are fair and professional and don’t get enough recognition.”

HLS students who worked on the case were Caroline Lents '10, Kimberly Sullivan '09, Juan Valdivieso '09, Meghan Maloney '09, Sydney Leavens '09, Melanie Conroy '08, and Albertina Antognini '08. They assisted with building the case including gathering facts and information about gang violence in El Salvador. At the evidentiary hearing, under Han’s supervision, Sullivan did most of the direct examination of witnesses while Lents gave the opening and closing statements.

Sullivan, who this year is clerking with the Massachusetts Court of Appeals and has an eye toward a career in asylum work, found the case very rewarding. “It’s a really amazing way to help someone so directly,” she says, adding that many asylum seekers do not have legal representation, which makes it very difficult for them to succeed.

Jim Cavallaro, HLS Clinical Professor of Law and Director of the International Human Rights Clinic, testified at the hearing as an expert witness on gang violence in El Salvador. Cavallaro has co-authored a book, No Place to Hide: Gang, State and Clandestine Violence in El Salvador, which will be published next month. He told the court of the pervasiveness of gangs in El Salvador, the extreme violence they employ, and that anyone who works with police against gangs faces a significant possibility of death. Cavallaro said the Immigration Clinic’s victory is noteworthy. “In most of these cases, despite the demonstrated threats and extreme violence to which people are subject if they are returned to El Salvador, the law has not been very favorable and a lot of people are returned,” he said.

With successes such as this, Anker said, “We renew our own sense of hope and of fighting back and overcoming and surviving. It is in part through the immigrant spirit—which these children embody—that America is replenished.”

Added Han, who recently finished her fellowship and is now working in Washington, D.C., for Ayuda, a nonprofit that assists undocumented aliens with asylum petitions, “I’m so happy for them. They’re the kind of people you want here, to better ourselves and our country. I know they can be such great citizens, real contributing members of our community.”